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Knoxville News Sentinel — Senate should approve federal shield law

It has been more than 35 years since the U.S. Supreme Court raised the possibility of a reporters shield law protection from being required by judges to reveal the source of a story that might prove embarrassing for governme

The Knoxville (Tenn.) News Sentinel July 28, 2008

It has been more than 35 years since the U.S. Supreme Court raised the possibility of a reporters shield law protection from being required by judges to reveal the source of a story that might prove embarrassing for government or industry.

Since the 1972 case of Branzburg v. Hayes, 49 states and the District of Columbia have adopted shield laws or other legal protections for reporters trying to safeguard their sources. However, there are no uniform federal standards to govern when confidential information can be sought from reporters and when that information is protected.

The U.S. Senate this week is expected to take up such a measure, the Free Flow of Information Act, S. 2035, also known as the federal media shield law. Clint Brewer, national president of the Society for Professional Journalists, said passage of the Senate bill “is the final step in protecting confidential sources in federal cases and the public's right to know.”

In its '72 decision, the Supreme Court ruled 5-4 that Paul Branzburg, a reporter with The Louisville Courier-Journal, did not have a constitutional right of protection from revealing confidential information in court. Nevertheless, the court also put the onus on government officials by saying they must show a substantial relation between the information being sought and a compelling state interest. Over the years, unfortunately, much has been left to the interpretation of various courts.

A federal shield law has been the project of a number of news organizations print, broadcast and television for many years. Last October, the House passed its version of the legislation by a bipartisan margin of 398 to 21. At the same time, the Senate Judiciary Committee approved S. 2035 by a 15-4 vote.

In early April, all three presidential candidates announced their support. Sen. John McCain, the presumptive Republican nominee, has signed on as a co-sponsor. Attorneys general from 42 states have expressed their approval in letters to Senate leaders Harry Reid and Mitch McConnell.

Spokesmen for news organizations said they have tried to address criticism from the Bush administration and others. For example, the bill is not a free pass for journalists and the news organizations for which they work. To the contrary, it attempts to establish reasonable ground rules for when reporters can be required in court to reveal their sources.

The Senate bill provides a qualified privilege, with some issues clearly not protected: acts of terrorism or other harm to national security, eyewitness observations of a crime or if the information is needed to prevent a death, kidnapping or substantial bodily harm.

Those issues notwithstanding, the federal shield law is needed to ensure that sources feel free to speak with reporters and disclose information that benefits the public and helps correct or prevent a problem without fear of retribution. Most newspapers, including the News Sentinel, prefer to have their sources on record, and we take pains every day to provide that element of transparency.

However, there are countless examples when news stories critical to the public interest might not have been told had it not been for confidentiality. Those in recent years include the Enron scandal, the poor conditions facing wounded servicemen and women at Walter Reed Medical Center and steroid use in major league baseball.

Potter Stewart was one of the dissenting justices in the Branzburg case. His comments put the issue of a federal shield law in a proper constitutional context. The court, he said, has long upheld the right to publish the news. “A corollary of the right to publish must be the right to gather news,” he said. “The full flow of information to the public protected by the free-press guarantee would be severely curtailed if no protection whatever were afforded to the process by which news is assembled and disseminated … . The right to gather news implies, in turn, a right to a confidential relationship between a reporter and his source.”

We urge our Tennessee senators, Lamar Alexander and Bob Corker, to support the bill before the Senate.